Last Revised on Jul 1, 2024
SECTION 8 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY
AGREEING TO THESE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES (WITH
LIMITED EXCEPTION) RELATED TO THE COMPANY’S SERVICES AND/OR PRODUCTS
THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE
ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B)
TO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS
ARBITRATIONS, OR REPRESENTATIVE ACTIONS, AS SET FORTH BELOW. YOU
HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION CLAUSE AND THE CLASS
ACTION WAIVER AS EXPLAINED IN SECTION 8.
Welcome to the Terms of Service (these “
Terms
”) for the website, morphstudio.com and app.morphstudio.com (the “
Website
”), operated on behalf of Morph AI. (
“Company”
, “
we
” or “
us
”). The Website and any content, tools, features and
functionality offered on or through our Website, including our
generative artificial intelligence platform used to create videos
from the images, texts, and other content you upload onto the
platform, are collectively referred to as the “
Services
”.
These Terms govern your access to and use of the Services.
Please read these Terms carefully, as they include important
information about your legal rights. By accessing and/or using the
Services, you are agreeing to these Terms. If you do not understand or
agree to these Terms, please do not use the Services.
For purposes of these Terms, “
you
” and “
your
” means you as the user of the Services. If you use the Services on
behalf of a company or other entity then “you” includes you and that
entity, and you represent and warrant that (a) you are an authorized
representative of the entity with the authority to bind the entity
to these Terms, and (b) you agree to these Terms on the entity’s
behalf.
1. WHO MAY USE THE SERVICES
•
You must be 18 years of age or older and reside in the United States
or any of its territories, or the legal age to form a binding contract
under the laws or your place of residence or any other applicable
jurisdiction, to use the Services. You may not use the Services
if you are barred from doing so under the laws of the United States,
your place of residence, or any other applicable jurisdiction.
By using the Services, you represent and warrant that you meet
these requirements.
2. USER ACCOUNTS, SUBSCRIPTIONS AND FREE TRIALS
•
Creating and Safeguarding your Account
. To use the Services, you need to create an account or link another
account, such as your Discord or Google account (“Account”). You agree
to provide us with accurate, complete and updated information for your
Account. You can access, edit and update your Account via the
“Profile” page. You are solely responsible for any activity on your
Account and for maintaining the confidentiality and security of your
password. We are not liable for any acts or omissions by you in
connection with your Account. You must immediately notify us at
team@morphstudio.com if you know or have any reason to suspect that
your Account or password have been stolen, misappropriated or
otherwise compromised, or in case of any actual or suspected
unauthorized use of your Account. You agree not to create any Account
if we have previously removed your, or we previously banned you from
any of our Services, unless we provide written consent otherwise.
•
Subscription Payment.
If you subscribe to any of our paid Services, you agree to pay us the
applicable fees and taxes in U.S. Dollars. Failure to pay these fees
and taxes will result in the termination of your access to the paid
Services. You agree that (a) if you purchase a subscription to any of
the Services, we may store and continue billing your payment method to
avoid interruption of such Services, and (b) we may calculate taxes
payable by you based on the billing information that you provide us at
the time of purchase. We reserve the right to change our
subscription plans or adjust pricing for the Services in any manner
and at any time as we may determine in our sole and absolute
discretion. Except as otherwise provided in these Terms, any price
changes or changes to your subscription plan will take effect
following reasonable notice to you. All subscriptions are payable in
accordance with payment terms in effect at the time the subscription
becomes payable. Subscriptions will not be processed until payment has
been received in full, and any holds on your account by any other
payment processor are solely your responsibility.
•
Payment Provider Terms.
We use Stripe, Inc. and its affiliates as our third-party service
provider for payment services (e.g., card acceptance, merchant
settlement, and related services) (“Payment Service Provider”). If you
subscribe to any of our paid Services, you will be required to provide
your payment details and any additional information required to
complete your order directly to our Payment Service Provider. You
agree to be bound by Stripe’s Privacy Policy (currently accessible at
https://stripe.com/us/privacy
) and its Terms of Service (currently accessible at
https://stripe.com/ssa
) and hereby consent and authorize the Company and Stripe to share any
information and payment instructions you provide with one or more
Payment Service Provider(s) to the minimum extent required to complete
your transactions. Please note that online payment transactions may be
subject to validation checks by our Payment Service Provider and your
card issuer, and we are not responsible if your card issuer declines
to authorize payment for any reason. For your protection, our Payment
Service Provider uses various fraud prevention protocols and industry
standard verification systems to reduce fraud and you authorize it to
verify and authenticate your payment information. Your card issuer may
charge you an online handling fee or processing fee. We are not
responsible for this. In some jurisdictions, our Payment Service
Provider may use third parties under strict confidentiality and data
protection requirements for the purposes of payment processing
services.
•
Subscription Renewals and Cancellations. You agree that if you
purchase a subscription, your subscription will automatically renew
at the subscription period frequency referenced on your subscription
page (or if not designated, then monthly) and at the then-current
rates, and your payment method will automatically be charged at the
start of each new subscription period for the fees and taxes
applicable to that period. To avoid future subscription
charges, you must cancel your subscription before the subscription
period renewal date by contacting us at
team@morphstudio.com
or by logging into your account, clicking on your profile name
in the top right corner, and navigating to the FAQ section under
“Pricing” page to cancel your subscription plan.
•
No Subscription Refunds.
Except as expressly set forth in these Terms, payments for any
subscriptions to the Services are nonrefundable and there are no
credits for partially used periods. Following any cancellation by you,
however, you will continue to have access to the paid Services through
the end of the subscription period for which payment has already been
made.
•
Free Trials.
If we permit you to sign up for a trial Account for the paid portion
of the Services, your trial period starts on the day you create the
trial Account and lasts for the duration indicated on your free trial
confirmation email (or if not specified, then 7 days). If you are on a
trial, you may cancel at any time until the last day of your trial by
following the cancellation procedures outlined in Section 2.2 above.
If you do not cancel your trial Account at the end of your free
trial period, and we have notified you that your Account will be
converted to a paid subscription at the end of the free trial
period, you authorize us to charge your credit card or other
designated billing method for continued use of the paid Services.
You may, however, then cancel your subscription in
accordance with Section 2.3 of these Terms. If you cancel your trial
Account or decide not to purchase a paid version of the Services at
the end of your trial period, your content or data associated with
your trial Account will no longer be available to you, and the
Company may delete or remove any such content or data.
•
Promotional Codes.
We may offer certain promotional codes, referral codes, discount
codes, coupon codes or similar offers (“
Promotional Codes
”) that may be redeemed for discounts on the Services or features or
benefits related to the Services, subject to any additional terms
that the Company establishes. You agree that Promotional Codes: (a)
must be used in a lawful manner; (b) must be used for the intended
audience and purpose; (c) may not be duplicated, sold or transferred
in any manner, or made available by you to the general public
(whether posted to a public forum, coupon collecting service, or
otherwise), unless expressly permitted by the Company; (d) may be
disabled or have additional conditions applied to them by the
Company at any time for any reason without liability to the Company;
(e) may only be used pursuant to the specific terms that the Company
establishes for such Promotional Code; (f) are not valid for cash or
other credits or points; and (g) may expire prior to your use.
3.
LOCATION OF OUR PRIVACY POLICY AND OTHER APPLICABLE POLICIES
•
Privacy Policy.
Our Privacy Policy describes how we handle the information you provide
to us when you use the Services. For an explanation of our privacy
practices, please visit our Privacy Policy located at
app.morphstudio.com/privacy-policy
.
4.
RIGHTS WE GRANT YOU
1.
Right to Use Services.
We hereby permit you to use the Services for your personal,
non-commercial use only (excluding periods for which your subscription
plan permits commercial use), provided that you comply with these
Terms and our policies (including our Acceptable Use Policy) in
connection with all such use. If any software, content or other
materials owned or controlled by us are distributed to you as part of
your use of the Services, we hereby grant you, a personal,
non-assignable, non-sublicensable, non-transferrable, and
non-exclusive right and license to access and display such software,
content and materials provided to you as part of the Services, in each
case for the sole purpose of enabling you to use the Services as
permitted by these Terms. Your access and use of the Services may be
interrupted from time to time for any of several reasons, including,
without limitation, the malfunction of equipment, periodic updating,
maintenance or repair of the Services or other actions that Company,
in its sole discretion, may elect to take.
2.
Restrictions On Your Use of the Services.
The rights granted to you in these Terms are subject to your
compliance with the restrictions set forth in this Section 4.2.
You may not do any of the following in connection with your use
of the Services, unless applicable laws or regulations prohibit these
restrictions or you have our written permission to do so:
￮
download, modify, copy, distribute, transmit, display, perform,
reproduce, duplicate, publish, license, create derivative works from,
or offer for sale any information contained on, or obtained from or
through, the Services, except for temporary files that are
automatically cached by your web browser for display purposes, or as
otherwise expressly permitted in these Terms;
￮
use, reproduce or remove any copyright, trademark, service mark, trade
name, slogan, logo, image, or other proprietary notation displayed on
or through the Services; utilize framing techniques to enclose any
trademark or logo located on the Services or any other portion of the
Services (including images, text, page layout or form); or use any
metatags or other “hidden text” using the Company’s name or
trademarks;
￮
duplicate, decompile, reverse engineer, disassemble or decode the
Services (including any underlying idea or algorithm), or attempt to
do any of the same;
￮
use automation software (bots), hacks, modifications (mods) or any
other unauthorized third-party software designed to modify the
Services;
￮
exploit the Services for any commercial purpose (excluding periods for
which your subscription plan permits commercial use), including
without limitation communicating or facilitating any commercial
advertisement or solicitation;
￮
access or use the Services in any manner that could disable,
overburden, damage, disrupt or impair the Services or interfere with
any other party’s access to or use of the Services or use any device,
software or routine that causes the same;
￮
attempt to gain unauthorized access to, interfere with, damage or
disrupt the Services, accounts registered to other users, or the
computer systems or networks connected to the Services;
￮
circumvent, remove, alter, deactivate, degrade or thwart any
technological measure or content protections of the Services;
￮
use any robot, spider, crawlers, scraper, or other automatic device,
process, software or queries that intercepts, “mines,” scrapes,
extracts, or otherwise accesses the Services to monitor, extract, copy
or collect information or data from or through the Services, or engage
in any manual process to do the same (except that we grant the
operators of public search engines revocable permission to use spiders
to copy materials from the Services for the sole purpose of and solely
to the extent necessary for creating publicly available searchable
indices of the materials, but not caches or archives of such
materials);
￮
introduce any viruses, trojan horses, worms, logic bombs or other
materials that are malicious or technologically harmful into our
systems;
￮
upload, submit, create, transmit, display, perform, post, store, or
otherwise make available through the Services (all of the foregoing, “
Make Available
”), including Inputs and Outputs, any content that is unlawful,
threatening, defamatory, obscene, excessively violent, deceptive,
fraudulent, libelous, unethical, biased, pornographic or profane,
invasive of privacy or publicity rights, harassing, abusive,
hateful, discriminatory, or cruel, or otherwise use the Services in
a manner that is obscene, excessively violent, harassing, hateful,
cruel, abusive, pornographic, inciting, organizing, promoting or
facilitating violence or criminal activities;
￮
Make Available, including Inputs and Outputs, any content that (i)
constitutes unauthorized or unsolicited advertising, junk or bulk
email; (ii) contains any personal information, such as financial,
medical or other sensitive personal information such as government
identifications, passport numbers or social security numbers; or (iii)
involves contests, sweepstakes, barter, advertising, pyramid schemes,
or other similar commercial activities or sales, without the Company’s
prior written express consent;
￮
post or otherwise Make Available a photograph of another person
without that person’s permission;
￮
impersonate any person or entity, including any employee or
representative of the Company;
￮
direct the Services to generate any Output in violation of any
applicable intellectual property right, contractual restriction, or
other law, or otherwise violate any applicable law or regulation in
connection with your access to or use of the Services;
or
￮
access or use the Services in any way not expressly permitted by these
Terms.
3.
Beta Offerings.
From time to time, we may, in our sole discretion, include certain
test or beta features or products in the Services (“
Beta Offerings
”) as we may designate from time to time. Your use of any Beta
Offering is completely voluntary. The Beta Offerings are provided on
an “as is” basis and may contain errors, defects, bugs, or
inaccuracies that could cause failures, corruption or loss of data
and information from any connected device. You acknowledge and agree
that all use of any Beta Offering is at your sole risk. You
agree that once you use a Beta Offering, your content or data may be
affected such that you may be unable to revert back to a prior
non-beta version of the same or similar feature. Additionally, if
such reversion is possible, you may not be able to return or restore
data created within the Beta Offering back to the prior non-beta
version. If we provide you any Beta Offerings on a closed beta or
confidential basis, we will notify you of such as part of your use
of the Beta Offerings. For any such confidential Beta Offerings, you
agree to not disclose, divulge, display, or otherwise make available
any of the Beta Offerings without our prior written consent.
5. OWNERSHIP AND CONTENT
1.
Ownership of the Services
. The Services, including their “look and feel” (e.g., text, graphics,
images, logos), proprietary content, information and other materials,
are protected under copyright, trademark and other intellectual
property laws. You agree that the Company and/or its licensors own all
right, title and interest in and to the Services (including any and
all intellectual property rights therein) and you agree not to take
any action(s) inconsistent with such ownership interests. We and
our licensors reserve all rights in connection with the Services and
its content (other than Your Content), including, without limitation,
the exclusive right to create derivative works.
2.
Ownership of Trademarks.
Morph AI, Morph Studio, the Morph Studio logo, and all related names,
logos, product and service names, designs and slogans are trademarks
of the Company or its affiliates or licensors. Other names,
logos, product and service names, designs and slogans that appear on
the Services are the property of their respective owners, who may or
may not be affiliated with, connected to, or sponsored by us.
3.
Inputs and Outputs.
The Services utilize artificial intelligence tools and functionalities
to process user inputs to the Services, such as text prompts,
directions, images, videos, or other content (the “
Input
”) and generate and return outputs based on such Inputs, which may
include or take the form of images, videos, sound effects, or other
content (the “
Output
”). To the fullest extent permitted by law, the Company reserves the
right, but not the obligation, to review or monitor Inputs and
Outputs using automated and manual tools. The Company does not claim
ownership any of your Inputs to the Services (“
Your Inputs
”) or any of the Outputs you create with the Services (“
Your Outputs
”). As between us and you, to the extent we acquire any rights
in any of Your Outputs, we hereby assign to you all right, title and
interest in and to Your Outputs. However, you acknowledge that due
to the nature of generative artificial intelligence tools, Your
Outputs may not be unique and users of the Services may create their
own Output that is similar or the same as Your Output. You hereby
waive and release the Company and any of its users from any claim
that another user’s Output is the same as, or reproduces, any of
Your Output.
4.
Your Content License Grant
. In connection with your use of the Services, you may be able
to post, upload, submit, or otherwise Make Available information,
data, text, software, music, sound, photographs, graphics, video,
messages, tags and/or other materials or content through the Services,
including Your Inputs and Your Outputs (“
Your Content
”). In order to operate the Services, we must obtain from you
certain license rights in Your Content so that actions we take in
operating the Services are not considered legal violations.
Accordingly, by using the Services or uploading or otherwise
Making Available Your Content, you grant us a license to access,
use, host, cache, store, reproduce, transmit, display, publish,
distribute, and modify (for technical purposes, e.g., making sure
content is viewable on smartphones as well as computers and other
devices) Your Content but solely as required to be able to operate,
improve, promote and provide the Services. You agree that
these rights and licenses are royalty free, transferable,
sub-licensable, worldwide and irrevocable (for so long as Your
Content is stored with us), and include a right for us to make Your
Content available to, and pass these rights along to, others with
whom we have contractual relationships related to the provision of
the Services, solely for the purpose of providing such Services, and
to otherwise permit access to or disclose Your Content to third
parties if we determine such access is necessary to comply with our
legal obligations. As part of the foregoing license grant you
agree that the other users of the Services shall have the right to
comment on and/or tag Your Content and/or to use, publish, display,
modify or include a copy of Your Content as part of their own use of
the Services; except that the foregoing shall not apply to any of
Your Content that you post privately for non-public display on the
platform used to provide the Services. To the fullest extent
permitted by applicable law, the Company reserves the right, and has
absolute discretion, to remove, screen, edit, or delete any of Your
Content at any time, for any reason, and without notice. By Making
Available Your Content through the Services, you represent and
warrant that you have, or have obtained, all rights, licenses,
consents, permissions, power and/or authority necessary to grant the
rights necessary to Make Available (and allow us to use) Your
Content in connection with the Services. You represent and warrant
that your submission of a Your Input in connection with your use of
the Services, including to generate Your Output, will not breach any
law or any third party’s terms and conditions associated with Your
Input.
5.
Your Use of Outputs
. You represent and warrant that you will not monetize, make
commercial use of, or otherwise use for or in connection with any
commercial purposes, any of Your Outputs that you create with the
Services during any period in which you did not have a subscription
plan that permitted such commercial use.
6.
Models
. You acknowledge that, unless otherwise agreed between you and the
Company, Inputs, Outputs, and user interactions with the Services may
be used by the Company to train, enhance, evolve and improve its
machine learning models and artificial models, algorithms and related
technology, products and services (including for labeling,
classification, content moderation and model training purposes)
(collectively, “
Models
”). As such, you hereby grant to the Company a non-exclusive,
irrevocable, perpetual, worldwide, royalty-free, fully paid,
transferable, sublicensable right and license to use any Inputs and
Outputs made available by you or otherwise generated in connection
with your use of the Services at any point, in connection with the
purposes described above. You acknowledge and agree that,
notwithstanding the automated suggestions provided by the Services,
you remain solely responsible for the content, legality, accuracy,
and completeness of the Outputs, and any use thereof.
7.
Ownership of Feedback.
We welcome feedback, comments and suggestions for improvements to the
Services (“
Feedback
”). You acknowledge and expressly agree that any contribution of
Feedback does not and will not give or grant you any right, title or
interest in the Services or in any such Feedback. All Feedback
becomes the sole and exclusive property of the Company, and the
Company may use and disclose Feedback in any manner and for any
purpose whatsoever without further notice or compensation to you and
without retention by you of any proprietary or other right or claim.
You hereby assign to the Company any and all right, title and
interest (including, but not limited to, any patent, copyright,
trade secret, trademark, show-how, know-how, moral rights and any
and all other intellectual property right) that you may have in and
to any and all Feedback.
8.
Notice of Infringement – DMCA (Copyright) Policy.
If you believe that any text, graphics, photos, audio, videos or other
materials or works uploaded, downloaded or appearing on the Services
have been copied in a way that constitutes copyright infringement, you
may submit a notification to our copyright agent in accordance with 17
USC 512(c) of the Digital Millennium Copyright Act (the “
DMCA
”), by providing the following information in writing:
￮
identification of the copyrighted work that is claimed to be
infringed;
￮
identification of the allegedly infringing material that is requested
to be removed, including a description of where it is located on the
Services;
￮
information for our copyright agent to contact you, such as an
address, telephone number and e-mail address;
￮
a statement that you have a good faith belief that the identified,
allegedly infringing use is not authorized by the copyright owners,
its agent or the law;
￮
a statement that the information above is accurate, and under penalty
of perjury, that you are the copyright owner or the authorized person
to act on behalf of the copyright owner; and
￮
the physical or electronic signature of a person authorized to act on
behalf of the owner of the copyright or of an exclusive right that is
allegedly infringed.
￮
Notices of copyright infringement claims should be sent by mail to:
Mellis, Inc., Attn: DMCA Compliance Officer, 849 High St, Palo Alto,
California 94301, USA; or by e-mail to
team@morphstudio.com
. It is our policy, in appropriate circumstances and at our
discretion, to disable or terminate the accounts of users who
repeatedly infringe copyrights or intellectual property rights of
others.
A user of the Services who has uploaded or posted materials identified
as infringing as described above may supply a counter-notification
pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a
counter-notification, we may reinstate the posts or material in
question, in our sole discretion.( )To file a counter-notification
with us, you must provide a written communication (by regular mail or
by email) that sets forth all of the items required by sections
512(g)(2) and (3) of the DMCA. Please note that you will be liable for
damages if you materially misrepresent that content or an activity is
not infringing the copyrights of others.()
6. THIRD PARTY SERVICES AND MATERIALS
1.
Use of Third Party Materials in the Services.
Certain Services may display, include or make available content, data,
information, applications or materials from third parties (“
Third Party Materials
”) or provide links to certain third party websites. By using the
Services, you acknowledge and agree that the Company is not
responsible for examining or evaluating the content, accuracy,
completeness, availability, timeliness, validity, copyright
compliance, legality, decency, quality or any other aspect of such
Third Party Materials or websites. You use all links to third-party
websites at your own risk. We do not warrant or endorse and do
not assume and will not have any liability or responsibility to you
or any other person for any third-party services, Third Party
Materials or third-party websites, or for any other materials,
products, or services of third parties. Third Party Materials and
links to other websites are provided solely as a convenience to you.
2.
Sharing Your Content and Information with Third Parties.
We may provide tools through the Services that enable you to export
information, including Your Content, to third-party websites,
including through features that allow you to link your Account with a
third-party website or account, or through our implementation of
third-party buttons (such as “like” or “share” buttons). By using one
of these tools, you agree that the Company may transfer that
information to the applicable third-party website. The Company is not
responsible for any third-party services’ use of your exported
information.
7. DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
1.
Disclaimers
￮
Your access to and use of the Services are at your own risk. You
understand and agree that the Services are provided to you on an “AS
IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the
maximum extent permitted under applicable law, the Company, its
parents, affiliates, related companies, officers, directors,
employees, agents, representatives, partners and licensors (the “
the Company Entities
”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR
IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT. The Company Entities make no warranty or
representation and disclaim all responsibility and liability for:
(a) the completeness, accuracy, availability, timeliness, security
or reliability of the Services, including with respect to the
results or output obtained from the use of the Services; (b) any
harm to your computer system, loss of data, or other harm that
results from your access to or use of the Services; (c) the
operation or compatibility with any other application or any
particular system or device; and (d) whether the Services will meet
your requirements or be available on an uninterrupted, secure or
error-free basis; and (e) the deletion of, or the failure to store
or transmit, Your Content and other communications maintained by the
Services. No advice or information, whether oral or written,
obtained from the Company Entities or through the Services, will
create any warranty or representation not expressly made herein.
￮
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY,
DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN SECTION 7.2 BELOW. IF
THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS,
EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE
ADDITIONAL RIGHTS.
￮
THE COMPANY ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY
FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES,
UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.
￮
THE COMPANY ENTITIES DO NOT REPRESENT OR WARRANT THAT YOU ARE THE
LEGAL OWNER OF ANY OUTPUT, OR THAT ANY INPUT OR OUTPUT ARE PROTECTABLE
BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT ANY OUTPUT DOES NOT
INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR
PROPRIETARY RIGHTS OF ANY THIRD PARTY. YOU ACKNOWLEDGE THAT THE
SERVICE LEVERAGES THIRD-PARTY SERVICES AND THAT THE COMPANY IS NOT
LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY LIABLE, FOR
THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH
THIRD-PARTY SERVICES RESTS ENTIRELY WITH YOU. YOU SHALL BE SOLELY
RESPONSIBLE FOR YOUR USE OF THE SERVICE AND ANY OUTPUT RESULTING
THEREFROM. YOU SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS
APPROPRIATE FOR YOUR SPECIFIC USE CASE.
￮
YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT
BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF
WHICH THE COMPANY ENTITIES WILL BE RESPONSIBLE FOR.
￮
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND
INTERACTIONS WITH THIRD PARTIES ON THE SERVICE. YOU ACKNOWLEDGE AND
AGREE THAT THE COMPANY ENTITIES ARE NOT LIABLE, AND YOU AGREE NOT TO
SEEK TO HOLD THE COMPANY ENTITIES LIABLE, FOR THE CONDUCT OF THIRD
PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF
INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
2.
Limitations of Liability
￮
TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL
THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING
INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION
OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO
YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER
ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE
ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND
WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR
OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR
DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION
WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES.
￮
TO THE EXTENT NOT PROHIBITED BY LAW, THE COMPANY ENTITIES’ TOTAL
LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE
GREATER OF (I) THE TOTAL AMOUNT PAID TO MORPH AI BY YOU IN THE PAST
SIX (6) MONTHS FOR THE SERVICES GIVING RISE TO SUCH LIABILITY; (II)
$100; OR (III) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED
BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.
￮
THE FOREGOING LIMITATIONS IN THIS SECTION 7.2 WILL APPLY EVEN IF THE
ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE
LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE
BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY.
￮
Indemnification.
By entering into these Terms and accessing or using the Services, you
agree that you shall defend, indemnify and hold the Company Entities
harmless from and against any and all claims, costs, damages, losses,
liabilities and expenses (including attorneys’ fees and costs)
incurred by the Company Entities arising out of or in connection with:
(a) your violation or breach of any term of these Terms or any
applicable law or regulation; (b) your violation of any rights of any
third party; (c) your misuse of the Services; (d) Your Content, or (e)
your negligence or willful misconduct. If you are obligated to
indemnify any Company Entity hereunder, then you agree that Company
(or, at its discretion, the applicable Company Entity) will have the
right, in its sole discretion, to control any action or proceeding and
to determine whether Company wishes to settle, and if so, on what
terms, and you agree to fully cooperate with Company in the defense or
settlement of such claim.
8. ARBITRATION AND CLASS ACTION WAIVER
1.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT
YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR
MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
2.
Informal Process First.
You and the Company agree that in the event of any dispute, either
party will first contact the other party and make a good faith
sustained effort to resolve the dispute before resorting to more
formal means of resolution, including without limitation, any court
action, after first allowing the receiving party thirty (30) days in
which to respond. Both you and the Company agree that this
dispute resolution procedure is a condition precedent which must be
satisfied before initiating any arbitration against the other party.
3.
Arbitration Agreement and Class Action Waiver.
After the informal dispute resolution process, any remaining dispute,
controversy, or claim (collectively, “
Claim
”) relating in any way to the Company’s services and/or
products, including the Services, and any use or access or lack of
access thereto, will be resolved by arbitration, including threshold
questions of arbitrability of the Claim. You and the Company agree
that any Claim will be settled by final and binding arbitration,
using the English language, administered by JAMS under its
Comprehensive Arbitration Rules and Procedures (the “
JAMS Rules
”) then in effect (those rules are deemed to be incorporated by
reference into this section, and as of the date of these Terms).
Because your contract with the Company, these Terms, and this
Arbitration Agreement concern interstate commerce, the Federal
Arbitration Act (“FAA”) governs the arbitrability of all disputes.
However, the arbitrator will apply applicable substantive law
consistent with the FAA and the applicable statute of limitations or
condition precedent to suit.
Arbitration will be handled by a sole arbitrator in accordance with
the JAMS Rules. Judgment on the arbitration award may be entered in
any court that has jurisdiction. Any arbitration under these Terms
will take place on an individual basis – class arbitrations and
class actions are not permitted. You understand that by agreeing to
these Terms, you and the Company are each waiving the right to trial
by jury or to participate in a class action or class arbitration.
4.
Exceptions.
Notwithstanding the foregoing, you and the Company agree that the
following types of disputes will be resolved in a court of proper
jurisdiction:
￮
disputes or claims within the jurisdiction of a small claims court
consistent with the jurisdictional and dollar limits that may apply,
as long as it is brought and maintained as an individual dispute and
not as a class, representative, or consolidated action or proceeding;
￮
disputes or claims where the sole form of relief sought is injunctive
relief (including public injunctive relief); or
￮
intellectual property disputes.
5.
Costs of Arbitration.
Payment of all filing, administration, and arbitrator costs and
expenses will be governed by the JAMS Rules, except that if you
demonstrate that any such costs and expenses owed by you under those
rules would be prohibitively more expensive than a court proceeding,
the Company will pay the amount of any such costs and expenses that
the arbitrator determines are necessary to prevent the arbitration
from being prohibitively more expensive than a court proceeding
(subject to possible reimbursement as set forth below).
Fees and costs may be awarded as provided pursuant to applicable law.
If the arbitrator finds that either the substance of your claim or the
relief sought in the demand is frivolous or brought for an improper
purpose (as measured by the standards set forth in Federal Rule of
Civil Procedure 11(b)), then the payment of all fees will be governed
by the JAMS rules. In that case, you agree to reimburse the Company
for all monies previously disbursed by it that are otherwise your
obligation to pay under the applicable rules. If you prevail in the
arbitration and are awarded an amount that is less than the last
written settlement amount offered by the Company before the arbitrator
was appointed, the Company will pay you the amount it offered in
settlement. The arbitrator may make rulings and resolve disputes
as to the payment and reimbursement of fees or expenses at any time
during the proceeding and upon request from either party made within
fourteen (14) days of the arbitrator’s ruling on the merits
6.
Opt-Out. You have the right to opt-out and not be bound by the
arbitration provisions set forth in these Terms by sending written
notice of your decision to opt-out to
team@morphstudio.com
or to the U.S. mailing address listed in the “How to Contact
Us” section of these Terms. The notice must be sent to the Company
within thirty (30) days of your first registering to use the
Services or agreeing to these Terms; otherwise you shall be bound to
arbitrate disputes on a non-class basis in accordance with these
Terms. If you opt out of only the arbitration provisions, and not
also the class action waiver, the class action waiver still applies.
You may not opt out of only the class action waiver and not
also the arbitration provisions. If you opt-out of these
arbitration provisions, the Company also will not be bound by them.
7.
WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS.
To the fullest extent permitted by applicable law, you and the Company
each agree that any proceeding to resolve any dispute, claim, or
controversy will be brought and conducted ONLY IN THE RESPECTIVE
PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED
CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR
PROCEEDING (“CLASS ACTION”). You and the Company AGREE TO WAIVE
THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS
ACTION. You and the Company EXPRESSLY WAIVE ANY ABILITY TO
MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject
to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE
OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY
PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you
and the Company agree that the ARBITRATOR MAY NOT CONSOLIDATE
PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT
OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the
avoidance of doubt, however, you can seek public injunctive relief to
the extent authorized by law and consistent with the Exceptions clause
above.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND
UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE
PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO
SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A
CLASS ACTION. If a court decides that the limitations of
this paragraph are deemed invalid or unenforceable, any putative
class, private attorney general, or consolidated or representative
action must be brought in a court of proper jurisdiction and not in
arbitration.
9. ADDITIONAL INFORMATION
1.
International Users.
The Services may be accessed from countries around the world and may
contain references to services and Content that are not available in
your country. These references do not imply that the Company intends
to announce such service or content in your country. The Services are
controlled and offered by the Company from its facilities in the
United States of America. The Company makes no representations that
the Services are appropriate or available for use in other locations.
Those who access or use the Services from other countries do so at
their own volition and are responsible for compliance with local law.
2.
Updating These Terms.
We may modify these Terms from time to time in which case we will
update the “Last Revised” date at the top of these Terms. If we
make changes that are material, we will use reasonable efforts to
attempt to notify you, such as by e-mail and/or by placing a prominent
notice on the first page of the Website. However, it is your sole
responsibility to review these Terms from time to time to view any
such changes. The updated Terms will be effective as of the time
of posting, or such later date as may be specified in the updated
Terms. Your continued access or use of the Services after the
modifications have become effective will be deemed your acceptance of
the modified Terms. No amendment shall apply to a dispute for which an
arbitration has been initiated prior to the change in Terms
3.
Termination of License and Your Account.
If you breach any of the provisions of these Terms, all licenses
granted by the Company will terminate automatically. Additionally, the
Company may suspend, disable, or delete your Account and/or the
Services (or any part of the foregoing) with or without notice, for
any or no reason. If the Company deletes your Account for any
suspected breach of these Terms by you, you are prohibited from
re-registering for the Services under a different name. In the event
of Account deletion for any reason, the Company may, but is not
obligated to, delete any of Your Content. the Company shall not be
responsible for the failure to delete or deletion of Your Content. All
sections which by their nature should survive the termination of these
Terms shall continue in full force and effect subsequent to and
notwithstanding any termination of these Terms by the Company or you.
Termination will not limit any of the Company’s other rights or
remedies at law or in equity.
4.
Injunctive Relief.
You agree that a breach of these Terms will cause irreparable injury
to the Company for which monetary damages would not be an adequate
remedy and the Company shall be entitled to equitable relief in
addition to any remedies it may have hereunder or at law without a
bond, other security or proof of damages.
5.
California Residents.
If you are a California resident, in accordance with Cal. Civ. Code §
1789.3, you may report complaints to the Complaint Assistance Unit of
the Division of Consumer Services of the California Department of
Consumer Affairs by contacting them in writing at 1625 North Market
Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800)
952-5210.
6.
Miscellaneous.
If any provision of these Terms shall be unlawful, void or for any
reason unenforceable, then that provision shall be deemed severable
from these Terms and shall not affect the validity and enforceability
of any remaining provisions. These Terms and the licenses granted
hereunder may be assigned by the Company but may not be assigned by
you without the prior express written consent of the Company. No
waiver by either party of any breach or default hereunder shall be
deemed to be a waiver of any preceding or subsequent breach or
default. The section headings used herein are for reference only and
shall not be read to have any legal effect. The Services are operated
by us in the United States. Those who choose to access the Services
from locations outside the United States do so at their own initiative
and are responsible for compliance with applicable local laws. These
Terms are governed by the laws of the State of California, without
regard to conflict of laws rules, and the proper venue for any
disputes arising out of or relating to any of the same will be the
arbitration venue set forth in Section 8, or if arbitration does not
apply, then the state and federal courts located in Santa Clara
County, California.
7.
How to Contact Us.
You may contact us regarding the Services or these Terms at: Sertus
Chambers, Governors Square, Suite #5-204, 23 Lime Tree Bay Avenue,
P.O. Box 2547, Grand Cayman, KY1-1104 or by e-mail at
team@morphstudio.com
.